Barney v. Quaker Oats Co.

Citation82 A. 113,85 Vt. 372
PartiesBARNEY v. QUAKER OATS CO.
Decision Date20 January 1912
CourtUnited States State Supreme Court of Vermont

Exceptions from Franklin County Court; William M. Taylor, Judge.

Action by Ella A. Barney, administratrix of William C. Barney, deceased, against the Quaker Oats Company. Verdict and judgment for plaintiff, and defendant excepted. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Warren R. Austin, J. W. Redmond, and Max L. Powell, for plaintiff.

It. E. Brown, W. B. C. Stickney, and G. F. Ladd, for defendant.

HASELTON, J. This is a case for alleged negligence on the part of the defendant, resulting in the death, October 7, 1908, of the plaintiff's intestate, William C. Barney. The action is brought for the benefit of his widow and the next of kin. The deceased left a widow, who, as administratrix, is the plaintiff, and five minor children. The case was tried upon an amended declaration which was met by the general issue. A verdict for the plaintiff was returned, and judgment was rendered thereon. The defendant excepted.

The defendant is a corporation, organized under the laws of New Jersey, with its main office in Chicago. At the date just named it was operating at Richford, in this state, a plant called in the proceedings below the "elevator." This consisted of a building of about these dimensions: Length, 130 feet; width, 90 feet; height, 154 feet. The plant included an engine house, not connected with the main building, and also flour sheds. The whole plant was used in the manufacture of mixed feed for horses and cattle. In this business the main building was used in part as a grain elevator for the storage of whole grain, in part as a grinding mill, and in part for the storage of the by-product of other plants operated by the defendant in various places, and in part for the mixing of the finished products of the business. Five-sixths of the material which entered into the finished products came to the plant ground and prepared for mixing. The defendant had operated the plant from January, 1903, down to October 7, 1908, the date already stated as that of the accident in question.

The plaintiff's testimony tended to show: That, of the material brought to the plant already ground, much was ground very fine, some of it not so fine, and that some of it had the coarseness of the hulls of oats. That this material was brought to the plant sometimes in bulk and sometimes in bags or sacks, and that, in transferring it to storage bins, it had to be shoveled or emptied into places on the ground floor, from which it was carried by the elevating process to storage bins in the upper part of the main building, and that from these bins the material had to be transferred by various processes to mixing tanks. That the handling of this material caused the air in the different parts of the plant to be filled with large but varying quantities of fine dust whenever the plant was in operation; the density of the dust at any given time depending upon the amount of the material that was in process of handling. The plaintiff's evidence also tended to show that during the time that the deceased was employed by the defendant, as will hereafter be stated, there came to the plant large quantities of corn, oats, and barley in bulk which were handled in the same manner as the material already referred to, and that, in the transfer of this grain, dust, that was mingled with it, was distributed through the atmosphere of the main building or "elevator," as it was called on trial, and as we will call it, for it was that, though something more; that, just before the accident in question, three car loads of barley had been so unloaded; that the elevator was equipped with stones and rollers for grinding whole grain; and that such grain was, almost every day, ground in the elevator building. The plaintiff's evidence further tended to show that the dust lodged several inches deep on rafters, beams, and other exposed surfaces; that beneath some parts of the floor the dust had accumulated to a depth of several feet; that there was no provision for collecting the dust, and no method, except sweeping, used for its removal; that a jar of the building would cause accumulated dust to be shaken from its lodgment and distributed through the air; that the jar from grinding would do that; that dust was thick in the air during the unloading of barley.

It appeared that the deceased had been in the employ of the defendant during all the time that it had operated the plant, and that he had worked in the plant about six years before the defendant operated it, and that the conditions as to dust were practically the same during the whole time of his employment. The main building was originally an elevator of the Canadian Pacific Railway Company, but had passed out of the hands of that company, by lease or otherwise, before the deceased was employed therein. The elevator equipment appeared to be unimpaired and in regular use, though the original number of tall bins, upwards of GO feet in height, had been reduced from about 77 to about 65 in number, and grinding and mixing appliances had been put in. The deceased acted as engineer for the defendant. He had charge of an electric lighting system throughout the plant. He also had charge of, inspected, and repaired a steam heating system and the water pipes throughout the entire plant and all machinery used in the entire plant. His duties in these regards obliged him to make, and he did make, daily visits to all parts of the elevator, and he was fully acquainted with all the described conditions existing therein. At the time of his death he was 52 years of age, was of more than ordinary intelligence, was fairly well educated, and was well posted in matters of general interest.

October 7, 1908, between the hours of 4 and 5 in the afternoon, while the plant "was in operation, and while the deceased was in the line of his duty, an explosion occurred in the elevator building, fire followed, and that building and portions of the adjacent buildings were thereby consumed. At the time of the explosion the deceased was in the elevator and then and there lost his life. The claim of the plaintiff was that the explosion which killed her husband resulted from the accumulation of large quantities of dust through the defendant's elevator building, already referred to; that the defendant was negligent in allowing the accumulation of dust and in not utilizing devices in known practical use for eliminating the dust from the air and thereby removing the danger of explosion; that the intestate was killed in encountering an extraordinary risk which he did not assume; and that he was without fault on his part. The plaintiff's testimony tended to show that the dust, when lying in piles, would, if set fife to, burn without exploding, but that when it was diffused through the air in the building it was liable at any time to explode, if fire came in contact with the intermingled air and dust, and that the explosion in question probably resulted from fire produced by the spontaneous combustion of some of the fine material, before described and known as "shives," which the plaintiff's evidence tended to show "had become hot enough to steam or smoke and approximated the point of ignition 15 days before the explosion."

The defendant introduced no testimony, but claimed that upon the evidence in the case such risk as there was was an ordinary incident of the business; that the accumulation of dust was inseparable from the conduct of the business; that there was no evidence tending to show that there was any device known which would prevent the conditions which existed at the time of the accident. The defendant further claimed that if the risk resulted from the negligence of the defendant, and so was extraordinary, it was one which the plaintiff assumed.

The plaintiff introduced certain evidence on the ground that it tended to show that the decedent had not been informed of and did not understand and appreciate the dangerous condition resulting from the dust in the air of the defendant's plant. This evidence consisted in part of testimony of witnesses that they never heard him say anything as to the dangerous character of the dust.

Carl Barney, a minor son and a school boy, testified to the effect that his father was kind to the children and thoughtful about their education and anxious and careful as to their safety; that his father talked with him a good deal and confided in him in matters pertaining to the affairs of the father and the affairs of the boy; that his father gave him advice, and advised him to work in the elevator on vacations and Saturdays, as he did until he got a job in the office of the defendant; that he began work in the elevator when the Quaker Oats Company took possession of it; that his work was in the elevator until he entered upon office work in 1907; that after that he did work in the elevator, off and on, when business was slack in the office; that his father cautioned him not to enter the bins for fear of falling off a ladder, and cautioned him to keep away from moving machinery, but that his father never said anything to him about danger from the dust in the mill; and that he never heard his father say anything to anybody about such danger.

Mrs. Barney, the widow and plaintiff, testified to the effect that the decedent was very anxious about the welfare of the children, and especially about that of Carl, the oldest, who was 17 at the time of the accident; that her husband confided in her a great deal about his business; that if anything worried him or troubled him he would speak to her about it and ask her advice; that he was a careful and anxious man; that he never said anything to her about any danger from the elevator dust, nor about any danger in his work at the elevator, further than to say to her that he felt that he was safer where he was than he would be in his...

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  • Woodhouse v. Woodhouse
    • United States
    • United States State Supreme Court of Vermont
    • October 7, 1925
    ......See Barney's Adm'r v. Quaker Oats Co., 85 Vt. 372, 384, 82 A. 113. .         Certain exceptions ......
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